Petition for Writ of Certiorari — Outhdorm Ros, Petitioner v. California

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 2020

OUTHDORM ROS, Petitioner

v.

PEOPLE OF THE STATE OF CALIFORNIA, Respondent

On Petition for Writ of Certiorari to the

California Court of Appeal,

Fourth Appellate District, iW

| Md

Jong Staley

United States Supreme

Court Bar No. 235559

16935 West Bernardo Drive

Suite 260

San Diego, CA 92127

(858) 335-2713

Johnstalevlaw@gmail.com

Counsel of Record

QUESTIONS PRESENTED FOR REVIEW

1. In a criminal prosecution, can a suspect’s silence after he is arrested, but

before he is questioned or read his rights under Miranda v. Arizona, 384 US.

436, 86 S.Ct. 1602, 16 L.Hd.2d (1966) be admitted during the prosecution case-inchief and commented upon during closing argument to prove his guilt?

2. Can an arrested suspect’s sua sponte invocation of his Fifth Amendment

right against self-incrimination, and subsequent silence, be admitted to prove his

guilt when the defendant has not been read his Miranda rights?

PARTIES TO THE PROCEEDINGS BELOW

The parties to the proceedings below were Defendant and Petitioner

OUTHDORM ROS and Plaintiff and Respondent the People of the State of California.

ALL PROCEEDINGS IN STATE AND FEDERAL TRIAL

AND APPELLATE COURT

On August 13, 2019, in People v. Ros, San Diego Superior Court case No.

SCD279952, a San Diego Superior Court jury found Petitioner guilty of making a

criminal threat in violation of California Penal Code section 422 and possessing a

controlled substance in violation of California Health and Safety Code section 11377,

subdivision (a). ORT 605-606. On September 20, 2019, Petitioner was sentenced to 11

years in California State Prison. 7RT 726-730.

The California Court of Appeal, Fourth Appellate District, Division One,

affirmed the judgment on December 31, 2020. People v. Ros, 2020 Cal. Unpub. LEXIS

8668 (2020); Appendix Ex. A.

Petitioner’s petition for review to the California Supreme Court, People v. Ros,

case number $266748, was denied on March 24, 2021. Appendix Ex. B

ii

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW.........0.0cccccceccccecevceveeeens i

COURT. 0. c cece cence eee e ent been esa etentntrntennns ii

OPINION BELOW «0.0... ccc ccc cee ee cn ccc even eeenenenntetnneng 1

JURISDICTION . 0... ccc cence eee e nec eens neubannntnenenens 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED. .............. 2

1. Federal Constitutional Provisions. .........0.0..0. 00. c ccc e neces eens 2

2. State Statutory Provisions .......0... 00... c cece cece cea eaeeeveee 2

STATEMENT OF THE CASE oo... cece cece eee ces ev ee cenceucavenceus 3

A. HOW THE FEDERAL QUESTIONS WERE PRESENTED.............. 3

B. SUMMARY OF PROCEEDINGS IN THE TRIAL COURT............... 3

1. The Proseeution Case-in-Chief........0..0..0 00 00sec cece eee ae 3

2. The Defense Case... 0.0... 6c. c cece cece een ceeceeneueues 4A

3. The Prosecution Rebuttal Case ........ 0.0.0.0. ccc eee e aes 4

4, Objections to the Admission into Evidence of Petitioner’s Statement

that he was Asserting his Miranda Right and Would be Silent. ..... 5

5. The Prosecutor’s Argument Regarding Petitioner’s Silence ...... 6

REASONS FOR GRANTING THE WRIT 2.0... 00.0000. c cece ce ceceeneeusucues 7

CERTIORARI SHOULD BE GRANTED TO DETERMINE WHETHER A SUSPECT’S

iii

POST-ARREST SILENCE, AND ASSERTION OF HIS RIGHT AGAINST SELF-

INCRIMINATION, ARE ADMISSIBLE INTO EVIDENCE DURING THE PROSECUTION

CASE-IN-CHIEF AND SUBJECT TO COMMENT DURING CLOSING ARGUMENT,

WHEN THE DEFENDANT HAS NOT BEEN READ HIS RIGHTS UNDER MIRANDA V.

ARIZONA, 384 US. 436, 86 S.CT. 1602, 16 L-ED.2D 694(1966) ......00......00. 7

A. Introduction. 0.0.0.0... ccc ccc ccc e ene eenseuneevneenveees 7

B. This Court’s Relevant Decisions Addressing the Fifth Amendment Right

against Self-Incrimination and Miranda v. Arizona ...........0.0604. fi

C. This Case Presents an Important Question of Federal Law Which this Court

Should Decide 0.0.0.0... cece cece cece nee c ccna eeeasesveveeees 13

1. Circuit Court Decisions Which Do not Permit Admission as

Substantive Evidence of Guilt the Defendant’s Post-Arrest Silence Prior

to the Reading of Miranda Rights........... 00.000 cece ce ceeees 15

2. Federal Cireuit Court Decisions Permitting Admission as Substantive

Evidence of Guilt the Defendant’s Silence Prior to the Reading of

Miranda Rights 0.00... ccc ccc cece ceca ceeanaes 20

3. The Federal Courts are Also Split Regarding the use of the

Defendant’s Pre-arrest Silence as Substantive Evidence of Guilt During

the Prosecution Case-in-Chief .......0.0.0000 000 c ceca cece eae 23

4. The Conflicts in the Decisions of the State Courts.............. 24

5. The Legal Scholars. ......... 0.0.0 cc cccccceececceseeceuaeus 25

CONCLUSION 2.0.0.0 6 cece ccc cence cnet e eee evencanententnsnnes 27

APPENDICES

APPENDIX A; Opinion in People v. Ros, California Court of Appeal Case No.

D076616

APPENDIX B; Order Denying Review in People v. Ros, California Supreme

Court Case No. D076616

iv

APPENDIX C; California Penal Code section 422 and California Health and

Safety Code section 11377

TABLE OF AUTHORITIES

Federal Cases

Berghuts v. Thompkins, 560 U.S. 370, 130 S.Ct. 2250,

176 L.Hd.2d 1098 (2010)... 0. cece cece ences eeeneeveanens 13

Combs v. Coyle, 205 F.3d 269 (6th Cir. 2000).........0. 000. cee eae 11, 17, 28

Coppola v. Powell, 878 F.2d 1562 (1" Cir. 1989)....0.........00 000. 9-10, 15-16

Davis v. United States, 512 U.S 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994)... 18

Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) ... 5, 12-13, 21, 26

Metcher v. Weir, 455 U.S. 603, 102 8.Ct. 1809, 71 L.Ed.2d 490 (1982) .... 18, 21-22

Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) ....... 5

Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980) .... 11-18

Miranda v. Arizona, 384 US. 436, 86 S.Ct. 1602, 16 LEd.2d (1966) ........ passim

Salinas v. Texas, 570 U.S. 178, 133 8.Ct. 2174, 186 L.Ed.2d 876 (2018) . 7, 9-10, 18

United States v. Burson, 952 F.2d 1196, 1201 (40" Cir. 1991)

foe c eee e eee enee 23

United States v. Cabezas-Montana, 949 F.3d 567 (11 Cir. 2020). ....... 7, 22-23

United States v. Caro, 637 F.2d 869, 876 (2°. Cir. 1981) 00.0. ccc eee eee 17

United States ex rel. Savory v. Lane, 832 F.2d 1011 (7" Cir. 1987) .......... 18

United States v. Frazier, 408 F.3d 1102 (8 Cir. 2005) .......0.00... cee 22, 27

United States v. Hale, 422 U.S. 171, 95 S.Ct. 2138, 45 L.Fd.2d 99 (1975)... 12, 27

United States v. Hernandez, 948 F.2d 316 (7 Cir. 1991)... 00. eee, 18-19

United States v. Love, 767 F.2d 1052 (4th Cir. 1985)... 9, 21, 26

United State v. Moore, 104 F.3d 377 (D.C. Cir. 1997)... 19-~-20

United States v. Okatan, 728 F.3d 111 (2° Cir. 2018)... 16

United States v. Oplinger, 150 F.3d 1061, 1066-1067 (9" Cir. 1998) ........., 19

United States v. Rivera, 944 F.2d 1563 (11" Cir. 1991)... 22

United States v. Velarde-Gomez, 269 F.3d 1023 (9" Cir. 2001) 2.00. .0000., 19, 24

United States v. Whitehead, 200 F.3d 634 (9" Cir 2000.) occ eee eee 18-19

United States v. Zanabria, 74 F.3d 590, 593 (5" Cir, 1996)... . ce, 24

Wainwright v. Greenfield, 474 US. 284, 106 S.Ct. 634, 88 L. Hd. 2d 623 (1986) .. 14

State Court Cases

in ve George T., 233 Cal.4th 620 (2004)... eee, 10

Ordway v. Commonwealth, 391 S.W3d 762 (S.Ct. Ky., 2018)... 0, 24

People v. Ros, 2020 Cal. Unpub. LEXIS 8668 (2020)... 1, 9-11

People v. Schollaert, 194 Mich. App. 158 (Ct. App. Mi, 1992).....00.00.000.. 25

People v. Tom, 59 Cal.4th 1210 (2014) 0. eee. 8-10

State v. Mainaaupo, 117 Haw. 235 (S.Ct. Haw. 2008) 20... cee, 24

vi

Federal Statutes and Rules of Court

28 United States Code section 1257.00.00... 0.0... ccc cece cece ceva vaeseeuens 2

United States Supreme Court Rules, rule 10 ........ 0.0... ccc ec ee cee c cues ii

State Statutes

Health and Safety Code section 11877.........0... 0.000 ccc cece eee eeceues 1-2

California Penal Code section 422 2.00.0... 0. ccc cc ccc cece cee neeeeeeneucs 1-2

Secondary Authority

Erwin N. Griswold, The Fifth Amendment Today: Three Speeches 7 (1955).... 11

Gee, Salinas v. Texas: Pre-Miranda Silence Can Be Used Against a Defendant

(2014) 47 Suffolk U.L. Rev. 727....000 0.00 cece cece cece cee aeucenceveeus 26-27

Herrman & Speer, Standing Mute at Arrest As Evidence of Guilt; The “Right to

Stlence” Under Attack (2007) 35 Am. J. Crim. L. 1.0.0.0... 00. c cece ec cueeee 27

vii

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 2020

OUTHDORM ROS, Petitioner

v.

PEOPLE OF THE STATE OF CALIFORNIA, Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

CALIFORNIA COURT OF APPEAL,

FOURTH APPELLATE DISTRICT, DIVISION ONE

Petitioner OUTHDORM ROS, respectfully prays that a writ of certiorari issue

to review the judgment and opinion of the California Court of Appeal, Fourth

Appellate District, Division One, decided on December 31, 2020. Petitioner’s petition

for review to the California Supreme Court was denied on March 24, 2021.

OPINION BELOW

The opinion of the Court of Appeal, Fourth Appellate District, Division One, is

printed in the appendix. The opinion was not published in the official reporter of

opinions for the State of California. The Lexis citation is People v. Ros, 2020 Cal.

Unpub. LEXIS 8668 (2020); Appendix Ex A. The California Supreme Court’s order

denying discretionary review is unreported, case No. 266748. Appendix Ex. B.

JURISDICTION

On August 13, 2019, a San Diego Superior Court jury found Petitioner guilty

of making a criminal threat in violation of California Penal Code section 422 and

possessing a controlied substance in violation of California Health and Safety Code

section 11377, subdivision (a). 6RT 605-606. On September 20, 2019, Petitioner was

sentenced to 11 years in California State Prison. 7RT 726-730. The opinion of the

California Court of Appeal, Fourth Appellate District, Division One, was issued on

December 31, 2020: Appendix, Ex. A. The California Supreme Court denied

discretionary review on March 24, 2021. Appendix, Ex. B. The jurisdiction of this

Court to review the judgment of the San Diego Superior Court, and opinion of the

Court of Appeal, Fourth Appellate District, Division One, is invoked under 28 U.S.C.

§ 1257 (a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

i. Federal Constitutional Provisions.

The Fifth Amendment of the United States Constitution provides in part, “[nJo

person ... shall be compelled in any criminal case to be a witness against himself .

The Fourteenth Amendment of the United States Constitution provides in part,

“[njo state shall... deprive any person of life, liberty, or property without due

process oflaw....”

2. State Statutory Provisions.

The relevant statutes are California Penal Code section 422 and Health and

Safety Code section 11377, subdivision (a). The text of the statutes are Exhibit C in

the Appendix.

STATEMENT OF THE CASE

A. HOW THE FEDERAL QUESTIONS WERE PRESENTED.

The federal questions that are the subject of this Petition for Writ of Certiorari

were raised by an objection during Petitioner’s jury trial in the San Diego Superior

Court. The issues were argued in Petitioner’s direct appeal to the Fourth Appellate

District, Division One. The federal questions were further raised in a petition for

review to the California Supreme Court which denied review.

B. SUMMARY OF PROCEEDINGS IN THE TRIAL COURT.

i. The Prosecution Case-in-Chief.

Jacqueline F. was at a laundromat on University Avenue in San Diego in the

early morning hours of December 18, 2018. 4RT 226. Petitioner entered the

laundromat, climbed into a dryer, and closed the door. 4R'T 230, 238-240. He got out

a minute later, sat on a bench, and mumbled. 4RT 239-240. Petitioner followed

Jacqueline around the laundromat three times. 4RT 250. Jacqueline was concerned

about Petitioner's behavior. She retrieved her cell phone from her vehicle and walked

back in the laundromat. 4RT 250-251. Petitioner stood two feet from Jacqueline and

said, “don’t lie to me or I'll slit your throat and rob you and everybody. ” He then said

“T'm going to slit your throat.” 4RT 254-255, 277. The laundromat attendant called

911. ART 256-258,

City of San Diego Police Officer Daniel Almond responded to the laundromat.

Petitioner walked to the rear of the laundromat. Almond told him to come forward.

Petitioner turned and dropped something. Almond ordered Petitioner to the ground.

Petitioner complied and was handeuffed. 4RT 318-320. A knife and methamphetamine

were found and seized. 4RT 320-321. Almond’s body camera recorded his interaction

with Petitioner. The video was played for the jury. 4RT 325-326; exhibit 20. The

transcript was exhibit 21A, RT 325-326; CT 58-60. The following exchange occurred:

ROS: Hey’ I’m gonna remain silent right now. I know my

rights are gonna be read, but said today, I’m gonna invoke

my rights right now.

ALMOND: Your what?

ROS: I said my Miranda rights uh being read to me and

toid me, and as you say it to me, I’m gonna remain silent

right now.

CT 59. Petitioner was transported to Scripps Mercy Hospital where the physician’s

differential diagnosis was malingering for secondary gain. 4RT 341-349, 356.

2. The Defense Case.

Aforensic psychologist testified Petitioner suffered from amphetamine induced

psychosis when he threatened Jacqueline F. 5RT 393, 398-399. The condition can

cause delusions and irrational and illogical thinking. 5RT 399-401.

3. The Prosecution Rebuttal Case.

The nurse who performed the intake process for Petitioner at the county jail

testified that he denied using drugs prior to his arrest. 5RT 453-454.

Petitioner did not testify at this trial.

4. The Objections to the Admission into Evidence of Petitioner’s

Statement that he was Asserting his MirandaRight and Would be Silent.

Petitioner’s trial counsel, during litigation of pretrial motions, objected to the

admission of evidence Petitioner had invoked his right to silence when Almond

arrested him. 1RT 128. The trial court asked whether the evidence could be admitted

to prove Petitioner’s state of mind and awareness. ({RT 128.) The defense counsel

stated that could be a theory of relevance, but case law, including Griffin v.

California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), and Doyle v. Ohio

(1876) 426 U.S. 610, 96 8.Ct. 2240, 49 L.Ed.2d 91 (1976), precluded admitting

Petitioner’s invocation of his Fifth Amendment right to silence for any purpose. JRT

128-129,

The hearing was continued to the next day for the trial court to review the

transcript from Almond’s body-worn camera. 2RT 171-172. The trial court noted

Petitioner had volunteered he was invoking his right to silence. 2RT 172. Defense

counsel argued the statement was not admissible even if it was relevant to

Petitioner’s level of cognitive functioning. 2RT 172-173.

The prosecutor responded she intended to use Petitioner’s assertion of his

right to silence to prove his state of mind, ie., Petitioner was aware of his

surroundings and able to control his behavior. The prosecutor claimed this did not

mean she would be arguing Petitioner was guilty based on his election to remain

silent. 2RT 176-177.

The trial court concluded Petitioner’s assertion of his right to silence was

admissible because: (1) Petitioner had not received Miranda warnings when he

stated he wanted to be silent; and (2) the evidence was relevant to prove his state of

mind. {RT 179.

5. The Prosecutor’s Argument Regarding Petitioner’s Silence.

‘The prosecutor, during closing argument, exploited Petitioner’s post-arrest,

voluntary assertion of his right to silence to argue he was capable of forming the

specific intent required for making a criminal threat:

This is the important part, He says, “I’m going to remain

silent right now. I know my rights are going to be read, but

T said today ’'m invoke my rights right now.” ‘Your what?”

“I said Miranda rights being read to me and told me. And

as you say to me, I’m going to remain silent right now.”

Okay.

First and foremost, I will never ever argue that his

invocation of his rights shows that he’s guilty in any way

because he invokes them. Every individual in this United

States has that right and that’s not what you are allowed to

use it for. The judge had told you numerous times. ’'m

going to tell you.

This is what you can use it for. Without being asked, this

individual, Mr. Ros, who apparently going through a

hallucination, has thoughts of his Miranda right himself.

He has. This isn’t a case where he’s being asked “Do you

want to remain silent?” “These are your rights.” If that was

the case, we would have never read it to you or told you

about this, but he’s thought of them himself. He realized,

remember, that that’s an option you have when you get

arrested. He knows those are rights that he has. And he

says, you know what, ’'m going to invoke them. This is the

thought process in his head without being asked. Who does

he tell them to, though? An officer. He tell them to an

officer. He knows he’s being arrested, and he knows he’s

speaking to an officer now.

Think about this. Does he say these words, “I’m going to

invoke Miranda to Ms. [F.]? No. Does he tell the reverse?

Does he tell the officer, “'m going to slit your throat?” No.

He knows who he’s talking to. He’s going to slit the throat

of the women who can’t protect herself, but then he tells

the officer, I want to invoke my Miranda rights. He knows

who he’s talking to.

SORT 516-518.

REASONS FOR GRANTING THE WRIT

CERTIORARI SHOULD BE GRANTED TO

DETERMINE WHETHER A SUSPECT’S POST-

ARREST SILENCE, AND ASSERTION OF HIS RIGHT

AGAINST SELF-INCRIMINATION, ARE ADMISSIBLE

INTO EVIDENCE DURING THE PROSECUTION CASE-

IN-CHIEF AND SUBJECT TO COMMENT DURING

CLOSING ARGUMENT, WHEN THE DEFENDANT HAS

NOT BEEN READ HIS RIGHTS UNDER MIRANDA Y.

ARIZONA, 384 U.S. 436, 86 S.CT. 1602, 16 L-ED.2D 694

(1966)

A. Introduction.

Ina plurality decision, this Court held a suspect’s non-custodial silence during

an investigation may be used against him during the prosecution’s case-in-chief if the

suspect fails to expressly invoke the Fifth Amendment privilege against selfincrimination. Salinas v. Texas, 570 U.S. 178, 186-187, 133 S.Ct. 2174, 186 L.Ed.2d

376 (2013). The California Supreme Court subsequently applied this rationale behind

Salinas v. Texas to suspects in custody. The court held in a divided opinion that an

arrested suspect’s silence — before the suspect is questioned and before Miranda

warnings are given — may also be used in the prosecution’s case-in-chief if the

suspect fails to expressly invoke the privilege. People v. Tom, 59 Cal.4th 1210, 1236

(2014).

Justice Goodwin Liu dissented in People v. Tom. “[Rjemaining silent after

being placed under arrest” should be “enough to exercise one’s right to remain

silent.” Tom, 59 CaLAth at p. 1242 [dis, opn of J. Liu]. This is because requiring an

express invocation of the privilege creates a perverse incentive for police officers to

delay Miranda warnings. Id. at pp. 1242, 1253. It unfairly requires arrestees to know

in advance that this constitutional right must be affirmatively invoked or it is waived,

which is counter-intuitive to everything that an average layperson “knows” from

popular culture about the right to remain silent. Jd. at p. 1241, 1253. It is also difficult

to understand how the rule is supposed to work, as a practical matter, during an

ongoing police investigation because it appears to envision “that a suspect,

immediately after being arrested, will take the initiative to get a police officer’s

attention and declare his desire to invoke the Fifth Amendment privilege.” /d. at pp.

1253-1254.

The circuit courts are split on the use of post-arrest, pre-Miranda silence by

the prosecution in its case-in-chief. Compare United States v. Cabezas-Montana,

949 F.3d 567, 595 (11" Cir. 2020); United States v. Love, 767 F.2d 1052 (4th Cir.

1985) (both cases approving the admission of post-arrest and pre-Miranda silence)

with Coppola v. Powell, 878 F.2d 1562, 1567 (1" Cir. 1989) (disapproving of the

admission of post-arrest and pre-Méiranda silence). Compounding the problem

created by this split in the law, the California Court of Appeal adopted a rule in the

instant case which now places arrestees in a Catch-22 situation when they are

arrested.

Petitioner expressly invoked the right to remain silent as he was being

arrested: “Hey, I'm gonna remain silent right now. I know my rights are gonna be

read, but I said today, I'm gonna invoke my rights now.” CT 59. The California Court

of Appeal allowed this express invocation of the right against sel{-incrimination to be

used against Petitioner during the prosecution case-in-chief. (People v. Ros, 2020

CaLApp. Unpub. LEXIS at pp. 22-25.)' Yet, under Salinas v. Texas and People v.

Tom, an express invocation of the right to remain silent was required to prevent

post-arrest, pre-Afiranda silence from being used at evidence of guilt at trial. Salinas

' The page citation is to the internal pagination in the Lexis document.

9

v. Texas, 570 U.S. at pp. 186-188; People v. Tom at p. 1236. So how was Petitioner

to have refrained from speaking to police after his arrest without having that silence

used against him at his trial?

The circuit courts that have addressed this companion issue have come to the

opposite and correct conclusion, finding a suspect’s pre-Miranda assertion of the

right to silence inadmissible during the prosecution’s case-in-chiet. E.g., Coppola v.

Powell, 878 F.2d at pp. 1567-1568.

The California Court of Appeal concluded Petitioner’s assertion of his Miranda

rights were not admitted to prove guilt, but to prove his state of mind. People v. Ros,

2020 Cal.App. Unpub. LEXIS at p. 29.) This alternative holding for finding Petitioner’s

statement admissible does not obviate the need for clarity because it was wrong. The

reasoning created a distinction without a meaning. Petitioner’s statement to police

invoking his rights was admitted to show that he was not so impaired by drug use

that he was unable to form the specific intent element of the charged crime of making

a criminal threat. People v. Ros, 2020 Cal.App. Lexis at pp. 17-22. Under California

law, an element of making a criminal threat is that the defendant harbored specific

intent that his communication be taken as a threat by the victim. In re George T.,

233 Cal.4th 620, 630 (2004). The holding that the evidence was admitted to prove

intent, and not guilt, thus fails to provide alternate state grounds for upholding the

admission of Petitioner’s statement asserting his right against self-incrimination.

10

The opinion also erred by relying on cases where a defendant’s silence was

used to impeach the testimony he gave during his defense case. People v. Ros, 2020

Cal. App. Lexis at pp. 25, citing Jenkins v. Anderson, 447 U.S, 231 239-240, 100 S.Ct.

2124, 65 L.Ed.2d 86 (1980); see Combs v. Coyle 205 F.3d 269, 283 (6th Cir. 2000); ef.,

Wainwright v. Greenfield, 474 U.S. 284, 292-293, 106 S.Ct. 634, 639, 88 L.Ed.2d 623

(1986). Petitioner did not testify and those cases have no application to his claim of

constitutional error.

Rule 10, subdivision (c), provides certiorari may be granted when “a state court

or a United States courts of appeals has decided an important question of federal law

that has not been, but should be, settled by this Court... .” The issue raised herein

present an important question of federal law which should be settled by this Court.

The issues raised by Petitioner are also the subject of conflicting opinions by the

United States Courts of Appeal and state courts.

B. This Court’s Relevant Decisions Addressing the Fifth Amendment Right

Against Self-Incrimination and Miranda v. Arizona.

“The privilege against self-incrimination is one of the great landmarks in man’s

struggle to make himself civilized.” Erwin N. Griswold, The Fifth Amendment Today:

Three Speeches 7 (1955). This case involves one more step in that struggle.

Miranda v. Arizona was decided in 1966. Fifty-five years have since elapsed.

This Court has sculpted the scope of that holding in several decisions establishing

11

the following rules:

@ The defendant’s silence following the giving of Miranda warnings may not

be admitted into evidence during the prosecution case-in-chief to prove the

defendant’s gui. Doyle v. Ohio, 426 U.S. at pp. 617-618. The rationale was that,

“while it is true that the Méranda warnings contain no express assurance that

silence will carry no penalty, such assurance is implicit to any person who receives

the warnings. In such circumstances, it would be fundamentally unfair and a

deprivation of due process to allow the arrested persons silence to be used to

impeach an explanation subsequently offered at trial.” Doyle v. Ohio, 426 U.S. at p.

618;

® There is no Fifth or Fourteenth Amendment violation when the defendant’s

pre-arrest silence is used to impeach his credibility when he testifies at trial. Jenkins

v. Anderson, 447 U.S. at pp. 238-239; but ef. United States v. Hale, 422 U.S. 171, 176-

181, 95 S.Ct. 2188, 45 L.Ed.2d 99 (1975) (holding pursuant to this Court’s supervisory

powers over the federal courts that a defendant could not be impeached with his

silence following arrest). Jenkins v. Anderson reached its conclusion because the

common law traditionally allowed a witness to be impeached by his or her failure to

speak, Jenkins v. Anderson, 447 U.S. at page 239, and “no governmental action

induced petitioner to remain silent before arrest. The failure to speak occurred before

the petitioner was taken into custody and given Miranda warnings. Consequently,

12

the fundamental unfairness present in Doyle is not present in this case.” Jd. at p. 240.

Significantly, here, because the defendant in Jenkins v. Anderson testified, the

Court's decision did not “consider whether or under what circumstances prearrest

silence may be protected by the Fifth Amendment.” /d. at p. 236, n. 2. That issue is

now before the Court in this case.

@ There is no Fifth Amendment violation when the defendant’s post-arrest

silence is used to impeach his credibility as long as the defendant’s Miranda rights

have not yet been read to him. Fletcher v. Weir, 455 U.S. 608, 606-607, 102 S.Ct. 1809,

71 L.Ed.2d 490 (1982). The reason is that, “[i]n the absence of the sort of affirmative

assurances embodied in the Miranda warnings, we do not believe that it violates due

process of law for a State to permit cross-examination as to postarrest silence when

a defendant chooses to take the stand.” Fletcher v. Weir, 455 U.S. at p. 607.

® A defendant given Miranda warnings must unambiguously assert his right

to silence or right to counsel in order to require law enforcement to cease

interrogation. Davis v. United States, 512 U.S 452, 459, 114 8.Ct. 2350, 129 L.Ed.2d

362 (1994) (“the suspect must unambiguously request counsel.”); Berghuis v.

Thompkins, 560 U.S. 370, 381-382, 180 S.Ct. 2250, 176 L.Ed.2d 1098 (2010) (there is

no reason to not apply the Davis standard to assertion of the right to counsel); see

also Salinas v. Texas, 570 U.S. at pp. 186-187 (plurality opinion holding that

defendant's silence prior to being placed in custody or read his Miranda rights was

13

admissible to prove his guilt because the privilege against self-incrimination was not

self-executing and the defendant had failed to assert it).

C, This Case Presents an Important Question of Federal Law Which this Court

Should Decide.

Despite the passing of 55 years, this Court has not yet resolved issues

pertaining to the Fifth Amendment right to silence and due process of law in the

folowing context:

i. May the prosecution comment at trial on a defendant’s silence after his

arrest, but before he is questioned by police and before he is read his Méranda

rights?

2. May the prosecution use a defendant’s invocation of the right to remain right

silent, and subsequent silence, as substantive evidence of guilt under these same

circumstances?

It is clear under the above authorities a defendant who testifies at trial may

have his credibility impeached with his: (1) non-custodial silence; and (2) his postarrest, but pre-Adiranda, silence. Petitioner did not testify at his trial. Petitioner

asserted at the time of his arrest his right to silence before he had been read his

Miranda rights. Nevertheless, the trial court admitted Petitioner’s assertion of his

right to silence, and silence, as evidence during the prosecution case-in-chief to prove

his guilt. As noted, the federal and state courts are in conflict about how to deal with

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the situation when a defendant’s silence, or his invocation of the right to remain silent

at the time or after arrest, is offered as substantive evidence of guilt during the

prosecution case-in-chief.

As summarized below, five circuits and the District of Columbia have held that

a defendant’s post-arrest silence prior to the reading of Miranda rights may not be

admitted as substantive evidence of the defendant’s guilt during the prosecution casein-chief. Three circuit courts have reached the opposite conclusion. The conflict

extends from at least since 1985. The state courts decisions are also in conflict. Legal

scholars have criticized the cases permitting admission of post-arrest and pre-

Miranda silence because they do not adequately protect the Fifth Amendment right

against self-incrimination. This Court needs to provide guidance.

1. Cireuit Court Decisions Which Do not Permit Admission as Substantive

Evidence of Guilt the Defendant’s Post-Arrest Silence Prior to the

Reading of Miranda Rights.

The First, Second, Sixth, Seventh, Ninth and District of Columbia circuits have

concluded that a defendant’s silence prior to the reading of Miranda rights may not

be admitted as substantive evidence of guilt.

The First Circuit: The defendant in Coppola v. Powell, 878 F.2d 1562, was

suspected of committing a rape. A police officer went to the defendant’s home. The

officer did not read Miranda warnings. The defendant told the officer he was crazy

if the officer thought he would confess. He shortly thereafter said he would not talk

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without an attorney. The prosecution admitted during its case-in-chief the

defendant’s statement that he was not going to confess. The defendant did not testify

during the trial. The Court construed the defendant’s statement he was not going to

confess was an assertion of his right to silence. Coppola v. Powell, 878 F.2d at p.

1567. It concluded, “[p]etitoner relied on the protection guaranteed by the fifth

amendment from the first police interrogation through trial. Petitioner’s

constitutional rights were violated by the use of his statement in the prosecutor’s

case-in-chief.” /d. at p. 1568).

The Second Circuit: The defendant in United States v. Okatan, 728 F 3d 114

(2™ Cir. 2013), was apprehended near the Canadian border while engaged in a plot

to smuggle aliens into the United States. A border patrol agent confronted the

defendant. The agent reminded the defendant that lying to a law enforcement officer

was a crime. The defendant said he wanted an attorney. The prosecutor during his

case-in-chief elicited from a witness that the defendant had requested an attorney.

A motion for a mistrial was denied.

The Court first stated the defendant’s request for an attorney was also an

assertion of the right to silence. United States v. Okatan, 728 F.3d at p. 118-119. It

then concluded “that, where, as here, an individual is interrogated by an officer, even

prior to arrest, his invocation of the privilege against self-incrimination and his

subsequent silence cannot be used by the government in its case-in-chief as

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substantive evidence of guilt.” /d at p. 120; see also United States v. Caro, 637 F.2d

869, 876 (2". Cir. 1981) (stating in dicta that the court was not aware of any decision

permitting the use of silence, even a suspect who has been given no Miranda warnings

and was not entitled to them, to be used as part of the prosecution’s direct case.)

The Sixth Circuit: The defendant in Combs v. Coyle, 205 F.3d 269, shot two

people in a hotel parking lot. An off-duty police witnessed the incident and shot the

defendant multiple times. The defendant was being put in an ambulance when

another officer asked him what happened. The defendant told the officer to talk to

his attorney. This statement was admitted into evidence during the prosecution casein-chief to show the defendant’s level of cognitive functioning and rebut his

diminished mental state defense. Combs v. Coyle, 205 F.3d at pp. 273, 279. The jury

was given a limiting instruction that it could not infer guilt because the defendant

said he would not speak without an attorney, but could use that statement to show

his purpose and prior calculation. The Court “agree[d] with the reasoning expressed

in the opinions of the Seventh, First, and Tenth Circuits, and today we join those

circuits in holding that the use of a defendant's prearrest silence as substantive

evidence of guilt violates the Fifth Amendment's privilege against self-incrimination.

. application of the privilege is not limited to persons in custody or charged with a

crime; it may also be asserted by a suspect who is questioned during the investigation

of a crime.” Combs v. Coyle, 205 F.3d at p. 283.

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The Seventh Circuit: In United States v. Hernandez, 948 F.2d 316 (7 Cir.

1991), a law officer approached the defendant’s vehicle and ordered him out. The

defendant did not say anything at that time. The defendant had not yet been read his

Miranda rights. The trial court admitted testimony about the defendant’s silence.

The Court concluded error had occurred because, “it is a violation of the Fifth

Amendment privilege against self-incrimination to allow a prosecutor to use as

evidence of guilt a defendant’s refusal to talk to the police.” United States v.

Hernandez, 948 F.2d at p. 322; see also United States ex rel. Savory v. Lane, 832

F.2d 1011, 1018 (7" Cir. 1987) (“we believe that the state's suggestion that use of a

defendant's silence to impeach his trial testimony presents a constitutional issue, but

use of his silence to imply guilt does not, is nothing short of incredible.”)

The Ninth Circuit: The defendant in United States v. Whitehead, 200 F.3d

634 (9" Cir.), cert denied, 531 U.S. 885 (2000), was arrested at the border smuggling

marijuana in from Mexico. Whitehead was not read his Miranda rights, but remained

silent when. his vehicle was searched. A prosecution witness testified about the

defendant’s silence during the vehicle search. The prosecutor argued the defendant

was silent because he knew he was guilty. The Court concluded “when the district

court admitted evidence of Whitehead's post-arrest, pre-M/iranda silence, and when

it allowed the government to comment on this silence in closing argument, it plainly

infringed upon Whitehead's privilege against self-incrimination.” United States v.

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Whitehead, 200 F.3d at p. 639. The Ninth Cireuit followed this holding in United

States v. Velarde-Gomez, 269 F.3d 1023, 1031-1033 (9" Cir. 2001). Earlier Ninth

Circuit precedent had approved use of the defendant’s silence as substantive evidence

of guilt during the prosecution case-in-chief, but had done so in the context of prearrest interrogation. United States v. Oplinger, 150 F.3d 1061, 1066-1067 (9" Cir.

1998).

The D.C. Circuit: The defendant in United State v. Moore, 104 F.3d 877 (D.C.

Cir. 1997), ran several red lights. The defendant was stopped, arrested, and his

vehicle searched. Contraband was found. A prosecution witness testified the

defendant said nothing when the car was being searched. The prosecutor argued to

the jury the defendant would have claimed lack of knowledge of the contraband when

it was found if he did not know about.

The Moore court itself was split, but affirmed the judgment because any error

was harmless. The lead opinion by Justice Sentelle concluded, “[a]lthough in the

present case, interrogation per se had not begun, neither Afivanda nor any other case

suggests that a defendant's protected right to remain silent attaches only upon the

commencement of questioning as opposed to custody. While a defendant who chooses

to volunteer an unsolicited admission or statement to police before questioning may

be held to have waived the protection of that right, the defendant who stands silent

must be treated as having asserted it. Prosecutorial comment upon that assertion

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would unduly burden the Fifth Amendment privilege.” United States v. Moore, 104

F.2d at p. 385. Hence, “neither Miranda nor any other case suggests that a

defendant's protected right to remain silent attaches only upon the commencement

of questioning as opposed to custody.” Jb¢d. Justice Sentelle concluded, “It simply

cannot be the case that a citizen's protection against self-incrimination only attaches

when officers recite a certain litany of his rights.” Jd. at p. 387.

Justice Silberman disagreed with the majority’s reasoning because, “[i]t is

simply impossible to understand why the Constitution should be read as permitting

a prosecutor to produce evidence that a defendant in this situation sua sponte

admitted that the drugs and guns were his but not that he remained silent under

circumstances where an innocent man would surely have said or done something

reflecting shocked surprise.” United States v. Moore, 104 F.3d at p. 394 (Silberman,

J., concurring). Justice Tatel concurred with Justice Sentelle: “Here, because Moore

did not take the stand, the prosecution’s reference in summation to his failure to offer

exculpatory statements to police officers at the time of his arrest impermissibly

penalized him for exercising his Fifth Amendment privilege.” United States v. Moore,

104 F.3d at p. 396 (Tatel, J., concurring).

2. Circuit Court Decisions Permitting Admission as Substantive Evidence

of Guilt the Defendant’s Silence Prior to the Reading of Miranda Rights.

The Fourth, Eighth, and Eleventh Circuits permit a defendant’s post-arrest

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silence prior to the reading of Miranda rights to be admitted as substantive evidence

of guilt.

The Fourth Cireuit: The defendants in United States v. Love, 767 F.2d 1052,

were arrested following a RICO investigation. An agent testified the defendants made

no effort to explain their presence at a farm associated with narcotics trafficking.

The court, in reliance on Pletcher v. Weir, concluded, “[i]n this case neither Love nor

Youngblood had been given any Miranda warnings at the time Agent Hill observed

their silence. As a result, under Doyle and Fletcher, Agent Hill's testimony was

properly admitted.” United States v. Love, 767 F.2d at p. 1068.

The Eighth Circuit: The defendant in United States v. Frazter, 408 F.3d 1102

(8" Cir. 2005) was arrested for possession of pseudoephedrine. His vehicle was

stopped by law enforcement based on suspicion of narcotics trafficking. The vehicle

was searched and the contraband found. The defendant did not react or say anything

when arrested. He was not read his Miranda rights. The prosecutor introduced into

evidence during his case-in-chief the defendant’s failure to say anything when

arrested and argued it was proof of the defendants guilt. The Court found no violation

of the defendant’s constitutional rights:

The more precise issue is whether Frazier was under any

compulsion to speak at the time of his silence. He was not.

Although Frazier was under arrest, there was no

governmental action at that point inducing his silence,

Thus he was under no government-imposed compulsion to

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speak. It is not as if Frazier refused to answer questions in

the face of interrogation. We are speaking in this case only

of the defendant's silence during and just after his arrest.

an arrest by itself is not governmental action that

implicitly induces a defendant to remain silent. Fletcher,

455 U.S. at 606. Therefore, on these facts, the use of

Frazier's silence in the government's case-in-chief as

evidence of guilt did not violate his Fifth Amendment

rights.

(United States v. Frazier, 408 ¥.3d at p. 1111.)

The Eleventh Circuit: The defendants in United States v. Rivera, 944 F.2d

1563 (11™ Cir. 1991) were stopped at the Miami airport on suspicion of narcotics

trafficking. A law enforcement officer punctured their luggage with a screwdriver and

found cocaine. Nobody from the group showed surprise, agitation, or said anything.

The defendants argued their silence had been erroneously admitted. The Court

concluded, “In addition, the government may comment on a defendant's silence when

it occurs after arrest, but before Méranda warnings are given. The record does not

state whether Vila was in custody at the time that she and the others had been

directed by Schor to an inspection area. Yet, even if she was in custody at that time,

the government could comment on her silence as she viewed Schor’s inspection of

Stroud's suitcase because she had not yet been given her Miranda warnings.” United

States v. Rivera, 944 F.2d at p. 1568.

The defendants in United States v. Cabezas-Moniana, 949 F.3d 567 were

intercepted by the Coast Guard smuggling narcotics. The majority opinion relied on

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